Hot Takes

curry-occ
The OCC has just taken another step toward a national fintech charter.

Today it released a draft of the licensing manual supplement that will be used by fintech companies digital currency and blockchain companies among them to understand and engage in the process of becoming a chartered special purpose national bank (often called a Fintech Charter).

The draft manual echos and clarifies previous statements from the OCC specifying that they have legal authority to charter a company that merely provides access to a payment system (even if it doesn't take deposits or make loans). The draft manual reads:

a special purpose national bank that conducts activities other than fiduciary activities must conduct at least one of the following three core banking activities: taking deposits, paying checks, or lending money.

And then, as we've asked for in previous letters, it goes on to elaborate on what paying checks means in the modern world:

issuing debit cards or engaging in other means of facilitating payments electronically may be considered the modern equivalent of paying checks.

The draft manual also delves into a topic we focused on in our most recent comment letter: under existing interpretation and law is there a broad category of bank-permissible activities which could be used to describe the range of activities in which digital currency companies engage? The OCC helpfully points a perspective applicant in the right direction through a succession of footnote references to past interpretations (the same past laws and interpretations we described in our most recent comment). These include:

buying and selling exchange, coin, and bullion [12 USC 24]

which is one possible route for appraising the purchase or sale of digital currency to customers as a bank-permissible activity. The manual also describes:

establishing and operating a messenger service (12 CFR 7.1012), acting as a finder (12 CFR 7.1002)

which is a pretty good description of running a full node or a lightning node. It also cites:

acting as a finder (12 CFR 7.1002),

which is what a digital currency exchange is doing when it connects buyers and sellers on their platform. It also cites:

producing and selling software that performs a service the bank could perform directly (12 CFR 7.5006).

which is a great match for hosted wallet design and services, e.g. a high tech version of safekeeping activities banks have provided for centuries in the form of safe deposit boxes and other custodial services.

We're thrilled that the OCC is making this process as transparent as possible, and even doing a bit of hand-holding to help innovators (who are better versed in bits than bonds) understand and navigate the chartering process.

If you’d like to read more about how a charter may be relevant to digital currency companies take a look at our most recent letter to the OCC. And look out for our next comment! Even though licensing manuals are not usually subject to a public comment process, the OCC has asked for continued feedback from the community.

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usv-fireside
Open blockchains have all kinds of startup innovators excited.

That’s what we took away from a fireside chat that Brad Burnham conducted with Peter and me at Union Square Ventures’ office this week. The room was mostly comprised of startup employees from USV portfolio companies that don’t have anything to do with blockchain, but know that something important is happening with this technology and wanted to learn more.

Through the evening we covered a broad range of topics: tokenized crowdfunds and our views on the appropriate way to build those from a regulatory perspective, the new things that the novel features of cryptocurrencies such as micropayments and multi-sig transactions make possible, what decentralized trusted computing platforms (such as Ethereum) are, and the importance of permissionless, open blockchain networks.

It was clear that the animated audience was thinking through how to best apply these technologies to their current and future projects. There was particular interest in tokenized crowdfunding and what this phenomenon means for startups. Could this technology totally change the relationship between investors and businesses? Or businesses and their customers? Will developing open platforms become more economically feasible than it has been traditionally? As more and more entrepreneurial minds begin exploring applications of open blockchains, we’ll soon find out.

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peter-epicenter
More mainstream use will help regulators understand Bitcoin's benefits.

That’s what Peter Van Valkenburgh, Coin Center’s director of research, said when he went on the Epicenter podcast recently. The wide ranging interview, which covered topics such as the differences between open and closed blockchains and the regulatory considerations for appcoin crowdfunding, is embedded below. Or, if you prefer text, Bitcoin Magazine captured the highlights.

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wannacrypt
Why ransomware criminals use Bitcoin and why that could be their undoing.

Last week's major ransomware attack put Bitcoin back into spotlight. With that comes questions about what Bitcoin is, how it works, and why it is apparently favored by ransomware hackers.

Coin Center director of research Peter Van Valkenburgh was on the Marketplace radio show yesterday to talk through these questions. On why hackers are using Bitcoin, he said:

"The efficiency of the network is what criminals are really using it for here. It's electronic cash, so it’s easy to write software that can automatically demand payment and automatically demand that payment has been made."

He goes into more detail on what that means in his blog post, "Why Bitcoin is not the root cause of ransomware:"

"Bitcoin is particularly useful here because it’s fast, reliable, and verifiable. The hacker can simply watch the public blockchain to know if and when a victim has paid up; she can even make a unique payment address for each victim and automate the process of unlocking their files upon a confirmed bitcoin transaction to that unique address.

The truth is that criminals have, as usual, very strict design parameters for the tools they use because there’s no tech-support, contract, or legal recourse for a criminal whose tools fail to perform as they should. Criminals are using Bitcoin in this case because it’s a reliable system that just works. Ransomware hackers are rather like the proverbial rumrunners of prohibition: they like fast custom cars because almost everyone else is still driving a Model T."

Of course, as many have pointed out, there is an inherent problem with the choice to use cryptocurrency in this attack. The open, transparent, nature of bitcoin blockchain transactions means that the global community is closely watching the ransom money. This is going to make converting it into fiat currency pretty difficult to get away with. As Peter told the International Business Times:

"In the US, every major bitcoin exchange is regulated by FINCEN. Right now the $50,000 extorted from victims is just sitting on the bitcoin network...that [exchange into local currency] is where you're vulnerable to being identified."

We’ve detailed how law enforcement can use the bitcoin blockchain to track criminals before and have already seen high profile cases in which blockchain forensics exposed criminals. All they need to do is slip up once and a global community of professional and enthusiast cyber crime fighters will jump on them.

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fred-dinner
Get your tickets for the Coin Center Annual Dinner.

The blockchain community’s biggest night out is fast approaching. Please join us on May 22 in New York City, after the first day of Consensus 2017, for a fundraising gala in support of Coin Center’s policy mission.

Wences Casares, CEO of Xapo, will be the evening’s keynote speaker. Casares has been a central figure in driving Bitcoin forward since the earliest days and has an unshakable vision for the technology.

We expect this event to sell out. If you haven’t already, get your tickets today.

Special thanks to the dinner sponsors: Kraken, Fidelity Labs, Poloniex, Alphapoint, Bloq, the Charles Koch Institute, CIGI, Pantera Capital, Perkins Coie, and ShapeShift.

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waitingcustomers
Wary banks may be choking off the blockchain industry.

Aggressive de-risking is nothing new for digital currency businesses. Last year we released a report documenting the difficulty these startups had been having in securing banking relationships. Now the problem has gotten much worse with three exchanges, including the world’s largest, reporting that they are completely unable to process deposits or withdrawals, leaving customer funds trapped within their system. The Wall Street Journal has the story:

J.P. Morgan Chase & Co. prohibits banks it transacts with from dealing with virtual-currency exchanges, according to an internal document seen by The Wall Street Journal. Standard Chartered PLC also doesn’t process such transactions, according to a spokesman.

To be able to transact with the wider financial system, bitcoin exchanges must play cat-and-mouse, said Bitfinex’s Mr. Potter, continually switching bank accounts.

“They close one account, we open another somewhere else,” Mr. Potter said. “It’s a battle, but it looks like one that we appear to be losing, largely because we’re the largest such exchange in the world and we’ve got the biggest target painted on our back.”

Digital currency companies are not alone in overzealous targeting for this cut -off from the legacy financial system. Last week a Washington Post report showed that groups attempting to deliver aid to war-torn regions are suffering as well. While the goal of stopping money laundering and terrorist financing is a noble one, the incentives in place today might be driving regulators and banks to go far beyond what’s necessary and reasonable and could drive innovation overseas.

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The CSBS is suing the OCC to stop the new special purpose national bank charter for fintech firms.

In a press release, CSBS (the Conference of State Bank Supervisors) makes some alarming claims, suggesting the OCC is doomed to fall asleep at the switch, allow firms to fail, and leave fintech customers and US taxpayers as hapless victims:

The OCC’s proposed action ... harms markets and innovation, and puts taxpayers at risk of inevitable fintech failures. This is a dangerous combination and one the court should decisively halt

That sounds fantastical. The OCC is a heavy duty regulator with a century-plus-long track record; it’s not as if becoming a national bank is some easy feat, or that compliance costs are trivial. Also, as we and several others have stressed in comments throughout the OCC’s (very transparent and careful) responsible innovation proceeding, applying the patchwork of state-by-state licensing and oversight to global-by-default internet businesses is extremely costly. Any other claims aside, it's hard to imagine how providing a unified federal alternative could be bad for innovation and competition.

Moreover, if the states are doing such a great job at promoting innovation and protecting consumers, then why be so defensive here? The OCC’s charter merely provides a new alternative route to becoming a regulated fintech company; companies are free to continue seeking licensing and oversight from the states if they so choose.

Regardless of who is ultimately in the right here, this could become a turf war between powerful regulators with consumers and companies playing the part of unwitting pawns. This is not the sort of unified approach to regulating innovators that is likely to make the U.S. a technological leader. The Financial Conduct Authority in the UK and the Monetary Authority of Singapore may increasingly become the safest ports in a growing storm.

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humanitarian-aid
Overzealous AML enforcement doesn’t just harm innovation, it can also be deadly.

That’s what the conclusion of new research reported in the Washington Post today showing that the same kind of bank “derisking” that affects the deposits, wire transfers, and access to banking of digital currency firms is also affecting charities trying to save the lives of civilians injured in the Syrian civil war.

Although the hospital was run by the Syrian American Medical Society — a District-based charity that relies on donations — lack of funding wasn’t the issue. And in this case, the brutality of the Syrian regime wasn’t responsible for the supply shortage.

The problem was a U.S. bank.

During the bloody siege, the medical society had tried to wire $80,000 to a vendor in Turkey so its hospitals could stock up on medical supplies. But the U.S.-based bank, in its diligence to ensure the funds weren’t being funneled to overseas terrorists, was holding up the transfer. By the time the money went through six months later, the deadly siege was over.

The problem? AML regulations and enforcement actions have instilled such fear in banks that they won’t take a risk on anything mildly suspicious looking. A representative of the American Bankers Association explained:

“Unfortunately, banks just can’t send funds,” he said. “They look at it and say, ‘We can’t make the distinction between a charity that’s trying to get money to a starving family versus one that is ready to go out and buy a stockpile of Uzis to fire on civilians. We don’t have enough information, we can’t make that call, and if we make the wrong guess, we’re the ones that are in trouble.”

And from what we understand, there’s no simple policy fix. To address the unintended consequences of the federal government’s zealous pursuit of bad actors will require not only a change in law, but a change in culture as well. Financial institutions need to believe that they won’t be fined into oblivion for making one small mistake. This is why banks and policymakers in Congress and the Treasury should take seriously proposals like those by The Clearing House to overhaul the federal government’s AML/CFT regime.

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Based in Washington, D.C., Coin Center is the leading non-profit research and advocacy center focused on the public policy issues facing cryptocurrency and decentralized computing technologies like Bitcoin and Ethereum. Our mission is to build a better understanding of these technologies and to promote a regulatory climate that preserves the freedom to innovate using permisionless blockchain technologies.